Lowery v. Zorn

• Decision Date: 30 March 1936
• Docket Number: 33632
• Citation: Lowery v. Zorn, 184 La. 1054, 168 So. 297 (La. 1936)
• Court: Louisiana Supreme Court
• Parties: LOWERY v. ZORN (MARYLAND CASUALTY CO., Garnishee)

168 So. 297

184 La. 1054

LOWERY v. ZORN (MARYLAND CASUALTY CO., Garnishee)

No. 33632

Supreme Court of Louisiana

March 30, 1936

Rehearing Denied April 27, 1936

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; James D. Womack, Judge.

Suit by Christopher C. Lowery against J. J. Zorn, wherein the Maryland Casualty Company was garnisheed.Judgment for plaintiff, and the garnishee appeals.

Judgment amended, and, as so amended, affirmed.

E. W. &amp P. N. Browne, of Shreveport, for appellant.

Harry V. Booth and H. B. Lingle, both of Shreveport, for appellee.

OPINION

O'NIELL, Chief Justice.

Christopher C. Lowery obtained a judgment against J. J. Zorn, in the district court in Bossier parish, for damages for personal injuries suffered by Lowery and his minor son, Julius Lowery, in an automobile accident.Lowery and his son were riding in the cab of a motortruck which collided with an automobile driven by one W. C. Talley.The truck was owned by Zorn, a resident of Hacada, Ala., and was being driven by his employee at the time of the accident.The district judge found that the accident was caused by negligence on the part of the driver of Zorn's truck.Christopher C. Lowery was allowed $ 5,858.25 for his injuries and $ 150 for the use and benefit of his son.On appeal to the Court of Appeal for the Second Circuit, the judgment in favor of Christopher C. Lowery for his own use and benefit was increased to $ 8,358.25, and the judgment of $ 150 for the use and benefit of his son was affirmed.SeeLowery v. Zorn et al., 157 So. 826.

Thereafter, Lowery obtained a writ of fi. fa. and brought this garnishment proceeding against the Maryland Casualty Company, on a policy of insurance, insuring Zorn against loss from liability imposed upon him by law for damages on account of bodily injuries accidentally suffered by any person, caused by or through the ownership, maintenance or operation of the truck.The court gave judgment against the garnishee for the full amount of the judgment; that is, for the $ 8,358.25 damages suffered by Christopher C. Lowery and for the $ 150 damages suffered by his son, and for the court costs, amounting to $ 323.70, incurred in the district court in Bossier parish.The garnishee has appealed.

The garnishee, as insurer, is not liable for more than $ 5,000 for the damages suffered by Christopher C. Lowery, because the limit of liability as fixed in the policy is $ 5,000 for bodily injuries to one person and "subject to the same limit for each person" $ 10,000 for any one accident causing bodily injury to more than one person.Such limitations mean that, if two or more persons have suffered bodily injuries in one accident, and if the amount of damages suffered by one of the persons injured exceeds the limit of liability for injuries to one person, he cannot recover from the insurer more than the limit of liability for injuries to one person, even though the total amount of damages due to all of the injured persons is less than the limit of liability for one accident.Stated another way, the limit of liability for bodily injuries to more than one person in any one accident is subject to the further limit of liability for each one of the persons injured.In re Employers' Liability Assurance Corporation,180 La. 406, 156 So. 447.Accordingly, the extent of the liability of the insurer in this case is $ 5,150; that is, $ 5,000 for the bodily injuries suffered by Christopher C. Lowery and $ 150 for the bodily injuries suffered by his son.But, if the insurer is liable for the $ 5,150 damages, the insurer is liable also for the interest accruing thereon from the date of entry of the judgment against Zorn, and for all court costs which Zorn was condemned to pay and which the insurer has not paid; because the insurance policy, in Insuring Agreement III, provides that the insurer is liable for such interest and court costs, "irrespective of the limit of liability provided for in Insuring Agreement I" -- that is to say, irrespective of the limit of $ 5,000 for bodily injuries suffered by one person and the limit of $ 10,000 for bodily injuries suffered by more than one person in any one accident.

The question, whether the garnishee in this case is liable as insurer, depends entirely upon the question whether Christopher C. Lowery and his son were passengers for hire or were having a free ride on the truck, with the permission of its owner, at the time of the accident.One of the "Insuring Agreements," V (f), in the policy, is that it does not cover accidents occurring while the truck is being used for the carrying of passengers for a consideration.The reason why there is a dispute as to whether Christopher C. Lowery and his son were being carried as "passengers for a consideration" or free of charge, at the time of the accident, is that the truck was engaged in transporting Lowery's household furniture and effects, from a farm near Hacada, Ala., to a farm near Mansfield, La., for a stipulated charge of $ 75.And the question in dispute is whether the permission given by Zorn to Lowery, for him and his son to ride in the cab of the truck, was given as a part of the contract for the carrying of the furniture and household effects, or was given after the contract was entered into, and without any charge or consideration therefor.

The garnishee in this case depended upon an exception of no cause or right of action and a plea of estoppel, and Lowery depended upon a plea of res judicata and a counter plea of estoppel.The judge overruled the garnishee's exception of no cause or right of action and plea of estoppel, and sustained Lowery's plea of estoppel and plea of res judicata.

The garnishee's exception of no cause or right of action is founded upon two distinct propositions.The first proposition is that, when a garnishee shows that there is a serious dispute between him and the judgment debtor, as to whether the garnishee is indebted to the judgment debtor, the dispute must be settled, either amicably or by litigation between the judgment debtor and the garnishee, before the judgment creditor can proceed against the garnishee.Two decisions are cited to support this proposition, namely, Katz & Barnett v. Sorsby (London, Liverpool & Globe Insurance Company, Garnishee),34 La.Ann. 588, andLiminet v. Fourchy (Dumas, Garnishee),51 La.Ann. 1299, 26 So. 87, 88.But these cases are not in point.In Katz & Barnett v. Sorsby, the garnishee, insurance company, merely declined to admit or deny liability, because the alleged loss by fire, against which the garnishee had insured Sorsby, had not been adjusted at the time when the garnishee answered the interrogatories.In that case there was no clear-cut issue tendered, on which the court might decide whether the garnishee owed the defendant, Sorsby.In this case the issue is clearly presented.In Liminet v. Fourchy, the court expressed a belief that Fourchy was suing the garnishee indirectly in the name of Liminet, and was seeking thus to establish the alleged indebtedness by his own testimony as a witness for Liminet.There is no suggestion of any such motive in this case.Besides, in Liminet v. Fourchythe court referred to the alleged indebtedness of the garnishee to Fourchy as a matter involving "complicated accounts and protracted and multifarious transactions * * * to be examined."There is no such complication or difficulty in this case.The question is squarely presented by the rule which Lowery obtained to traverse the answers to the interrogatories propounded to the garnishee, and by the garnishee's exceptions and answer to the rule, whether Lowery and his son were passengers for hire, or were riding on the truck free of charge, with the consent of the owner, Zorn; and that is the only question on which depends the garnishee's liability to Zorn.That question can be determined as well in this garnishment proceeding as it could be in a direct action against the insurer, by the party having a judgment against the insured.

The other contention made by the garnishee in the exception of no cause or right of action is that the policy of insurance is merely an indemnity policy, insuring Zorn only against loss from liability imposed by law, etc., and hence that the insurance is not payable until Zorn has actually sustained the loss by paying the liability, or unless Zorn has become insolvent or gone into bankruptcy.If that is the correct interpretation of the policy, the injured party Lowery, could never have a right of action on the policy, except in case of insolvency or bankruptcy of the insured, because, if he should pay his indebtedness to Lowery, that would end the matter as far as Lowery is concerned.Our interpretation of the policy, however, is that the right to bring suit on...